What is bail?

Generally, bail is the temporary release of a prisoner in exchange for some type of security. Basically, it is the court’s way of making sure the defendant shows up in court on the next court date. That security can be money, or a combination of money and property.

Many people who do not have enough cash on hand to make the bail will use the services of a bail bondsman. If he or she does not appear on the next court date, the bail is at risk to be forfeited. Good criminal lawyers have close relationship with a trustworthy bail bondsman.

What does a bail bondsman do?

The bail bondsman will take out a security against a defendant’s assets in order to cover the cost of the bail. If the defendant does not have enough assets, then the bondsman might take out securities against individuals who are willing to assist, such as relatives and friends. When a security is taken out, a bondsman often requires a 10% cash payment in addition to the mortgage on a person’s home that would equal the full amount of the bail bond money owed.

In the event that a defendant does not arrive in court on the next scheduled court day, the bondsman can not only hire a bounty hunter to track the defendant down, but the bondsman then has a right to sue the defendant for money that was given to the court for the defendant’s bail bond. The bail bond agency may also recover any unpaid money by claiming assets that were owned by the defendant or those individuals that signed a contract to financial assist the defendant.

When is bail set by the Judge?

When a defendant is brought before the judge for the first time, the charges are read, and the District Attorney may ask for bail. The more serious the crime charges, the more likely it is the District Attorney’s Office will ask for bail.

After the Assistant District Attorney makes an argument for bail, the defense lawyer has the opportunity speak on behalf of the client for no bail or a reduced amount in bail that the defendant can afford.

It is the judge who ultimately decides the amount of bail. The judge will use the factors stated under Criminal Procedure Law 510.30 factors in evaluating how much bail, if any, is to be set. These factors may include:
– the seriousness of the charge. (If it a murder charge it is possible that the defendant will be held without bail.) Or for example, higher bail will be set for a felony case as opposed to a misdemeanor.
– the defendant’s employment history, education, ties to the community (meaning how long he or she has lived within the jurisdiction or county the court is in).
– if he or she has any previous criminal charges or convictions, if the person has a history of not coming to court and necessitating a warrant be issued.
– if the accused has a criminal record, did he or she spend time in jail
the weight of the evidence and likelihood of a conviction that the District Attorney’s Office has. This could be factors like DNA evidence, a confession, eyewitnesses, etc. The listing of the evidence is read off by the Assistant District Attorney in the courtroom in the application for bail.
– defendant’s financial resources, his family support (it is always great to have a daily member in the courtroom for an in-custody arraignment. Especially, if the accused is young).

An experienced defense lawyer will strenuously argue on behalf of the accused and list all of the items that are in his or her client’s favor. At times, it can be an uphill battle depending upon the judge. Which is why experienced criminal lawyers will make an established bail bondsman available to the client and his or her family.

Misuses of Bail

Other issues involving bail include the unfortunate problem of defendants taking quick pleas in order to get out of jail simply because of their inability to post the bail. We will discuss this at a later date.

For further reading review New York Criminal Procedure Law section 510.30.

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